I am really delighted to announce some exciting additions to the team of editors at EJIL:Talk! As Joseph Weiler, EJIL’s Editor in Chief, stated in an EJIL Editorial earlier this year, we are adding a category of Contributing Editor to the blog. . Contributing Editors will post regularly on the blog adding their own distinctive and scholarly voice, in this forum, to the analysis and discussions that take place here. We are pleased to have five Contributing Editors whose tenure starts this September. Many of them have already contributed to the blog previously and will already be known to readers. A distinctive feature of the European Journal of International Law is that it has been a home for the well established scholar as well as for the emerging scholar to find a voice and to establish a reputation. Our team has that usual EJIL blend to it. Our new Contributing Editors are as follows:

Christian Tams

Anne Peters

Anne Peters is the Director at the Max Planck Institute for Comparative Public Law and International Law Heidelberg (Germany) and a Professor of international law at the University of Basel (Switzerland). She is a member of the Editorial Board of EJIL and was President of the European Society of International Law from 2010 to 2012. Christian Tams is Professor of International Law at the University of Glasgow and a member of EJIL’s Scientific Advisory Board. He has contributed a number of posts to the blog in the past and is well known for his extensive scholarship across a wide range of areas of international law.

Antonios Tzanakopoulos

Antonios Tzanakopoulos is University Lecturer in Public International Law at Oxford and a Fellow of St Anne’s College, Oxford. He has been a frequent contributor to the blog, in addition to his numerous publications.

Matthew Happold

Diane Desierto

Matthew Happold, who is Professor of International Law at the University of Luxembourg, has also been a friend of the blog with a number of contributions over the years on a number of occasions. Diane Desierto is Assistant Professor of Law at the University of Hawaii Richardson School of Law. She is a Member of the EJIL Scientific Advisory Board and forthcoming Director of Studies for Public International Law at the Hague Academy of International Law.

The category of Contributing Editors will replace our former title of permanent contributors. We are grateful to Douglas Guilfoyle, Joanna Harrington and Michael Waibel for serving in that capacity. We hope that they will be permanent contributors indeed as they continue to post pieces on the blog.

There is no better evidence of the long shadow that the Iraq war continues to cast that, while in 2003 the British Parliament supported intervention against the mere possibility that weapons of mass destruction might be used, ten years later the British Parliament voted against it after they had actually been used. The vote of the British Parliament will shift the debate, in Britain at least, from law to politics. The domestic and international repercussions of this vote, including on the Syrian conflict, will no doubt require careful scrutiny, but the legal arguments remain relevant not least because the US and France may go ahead with the intervention.

As explained by Marko Milanovic in an earlier post, the British Government invoked humanitarian intervention as the legal basis for the use of force against Syria. Unlike Dapo Akande and Marko Milanovic, I am of the view that there is a doctrine of humanitarian intervention under international law today, although I accept that this doctrine is controversial. It is not to the well-trodden terms of this controversy that I would like to turn in this piece. Rather, I wish to focus on the nexus between the legal assessment and the strategic analysis.

Arguments for humanitarian intervention often assume that, once a certain threshold is reached, a right to use force arises automatically. I disagree. A right to use force on humanitarian grounds can only exist if, in that particular context, there is a military option that can improve the humanitarian situation. Where there is no such option, there is no right. Or, if there is a right, it is a right only in the most abstract of senses: the right to do something which cannot be done. The doctrine of humanitarian intervention gives states a right to use force in order to alleviate the humanitarian crisis. The purpose qualifies the right.

However, in many, perhaps most, conflicts a foreign military intervention offers no realistic prospects of accomplishing any humanitarian objective. In these cases the use of force would be unnecessary (or even counterproductive) – and therefore illegal. One might argue that the proper analysis is that the intervening state did have a right to use force under the doctrine of humanitarian intervention, but failed to exercise it in a manner consistent with the principle of necessity. As I said above, I prefer the view that ascribes the purpose to the scope of the right, because it leads to a right of humanitarian intervention that is inherently limited by the achievability of the humanitarian purpose. This approach is more consistent with the law on the use of force.

The legal assessment of the intervention in Syria thus turns on a question that – in the first instance at least – strategists rather than lawyers are better placed to address: is there a military option that can improve conditions for people in Syria? Put in other terms: is there an achievable humanitarian purpose? Read the rest of this entry…

The aim of this post is simply to point readers to debates within the United States regarding the legality of intervention in Syria. Unlike in the UK, there are two separate legal issues that are being discussed in the US. First, domestic constitutional law questions have loomed large regarding whether the President can order military action without the approval of Congress (see discussion by Julian Ku at Opinio Juris and coverage by CNN). So when the Speaker recently wrote to President Obama saying “it is essential you address on what basis any use of force would be legally justified” we can assume he was not referring to justification under international law. Indeed he went on to ask “how the justification comports with the exclusive authority of Congressional authorization under Article I of the Constitution.” Secondly, the justification for using force under international law is also getting some attention in the US. Indeed, US administration lawyers have been engaged in these discussions prior to the recent chemical attacks. Indeed, it was reported in July by the Wall Street Journal that provision of support by the US, to the rebels was slowed by “a string of cautionary opinions from administration lawyers over the last two years” with “the so-called Lawyers Group of top legal advisers from across the administration argu[ing] that Mr Obama risked violating international law”.

It is not clear what legal basis, if any, will be put forward by the Obama Administration for the strikes being contemplated. The Washington Post reports that:

“A senior Obama administration official said the United States is exploring a number of possible legal arguments to justify an armed response to what officials believe is the worst chemical weapons attack since 1988, . . . As part of that effort, U.S. officials are examining international agreements, including the 1925 Geneva Protocol and the 1992 Chemical Weapons Convention, both of which ban the use of chemical arms. “The fact that there is a long-standing international norm around the use of chemical weapons, that provides legitimacy for the international community to respond,” the administration official said. . . . [T]he administration is also studying the possibility that U.S. force could be used in support of Syria’s neighbors, including American allies Jordan and Turkey, if those governments invoke the right to self-defense against Syria.”

So perhaps the collective self defence I argument I noted in my earlier posts is not off the table. There has, of course, been a lot of commentary on these legal questions in US blogs and in the US media. Lawfare has very helpfully collected all of its posts on the Syria issue in a single post. Bloomberg has a piece with various views on the international law question from the US perspective. An admittedly not very thorough trawl of commentary in the US media and blogs suggests that unlike the UK, where there is some division of opinion (see this BBC piece with views from a number of people, including from me), there seems to be little division in the US as to the international law question. From what I can see, most American academics who have commented on the issue, and it seems legal advisers, take the view the international law does not provide a legal basis for using force.

In more breaking news today, the UK government officially endorsed humanitarian intervention as a legal basis for using force against Syria. The full (and quite brief) statement can be found here, and is also reproduced below the fold. While it is not supported by a detailed legal analysis, it sets out three legal conditions for the use of force in a humanitarian intervention without UN Security Council authorization, and finds that Syria fulfils these criteria on the facts. This is as formal an expression of opinio juris by the UK as is possible, and probably the most official endorsement to date of humanitarian intervention (note also the absence of any reference to R2P).

I fully ascribe to Dapo’s analysis from his post yesterday, and have little to add in that regard: humanitarian intervention is not permissible in international law as it stands today, on 29 August 2013. The key issue for me here is how the UK is essentially trying to change international law by asserting a position and waiting to see how other players will react and possibly validate its view; the conceptual problems that Dapo points to aside, this is essentially how customary law works. I’d also refer readers to an excellent 1994 piece by James Crawford and Thomas Viles called ‘International Law on a Given Day’, on custom as ex-post facto rationalization, which is excerpted in part here.

UPDATE 1: The language of the UK guidance with regard to the three criteria reproduces almost verbatim an October 1998 FCO memo in respect of the impending intervention against the FRY, which is itself quoted in this article by Adam Roberts at p. 106. One key difference between the two memos is that the 1998 uses UNSC resolution 1199 and UN reports as convincing evidence of an impending humanitarian catastrophe, and this is missing with respect to Syria.

UPDATE 2: Dapo and Philippe Sands discuss the problems with the UK government’s rationale in the Guardian here.

I’ve just been informed by a reliable source that the special ICTY chamber appointed to hear Seselj’s motion to recuse Judge Harhoff from his case for appearance of bias has accepted the motion. (This is of course one more chapter in the continuing Meron/Harhoff saga). That means that the Seselj case is probably going bust, as no stand-by judge was sitting in who could replace Harhoff. More to follow, once the decision is made public.

UPDATE: The decision is now officially available here. The Chamber split 2 to 1, Judges Moloto and Hall in favour, Judge Liu vigorously dissenting, finding that there was an appearance of bias. Money quote:

13. By referring to a “set practice” of convicting accused persons without reference to an evaluation of the evidence in each individual case, the Majority, Judge Liu dissenting, considers that there are grounds for concluding that a reasonable observer, properly informed, would reasonably apprehend bias on the part of Judge Harhoff in favour of conviction. This includes for the purposes of the present case. This appearance of bias is further compounded by Judge Harhoff’s statement that he is confronted by a professional and moral dilemma, which in the view of the Majority, is a clear reference to his difficulty in applying the current jurisprudence of the Tribunal. In the circumstances, the Majority considers that the Letter, when read as a whole, rebuts the presumption of impartiality. … 14. The Majority, Judge Liu dissenting, finds that in the Letter Judge Harhoff has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias.

We’ll see what this means for the Seselj case and possibly other cases before the ICTY in which Judge Harhoff was involved. Dov Jacobs has more commentary here and here. For my part, the decision does seem to be based on a rather cursory and acontextual assessement of the Harhoff letter, as Judge Liu points out in his dissent, and is moreover not clear as to whether Harhoff is being disqualified for apparent or actual bias. And to the extent that Judge Harhoff had any difficulties in applying the current jurisprudence of the Tribunal (assuming that the jurisprudence he takes issue with would actually be central to the Seselj case), one assumes that any errors of law he made could be corrected on appeal.

As for Seselj, the trial itself has been badly mismanaged almost from the very start. Seselj himself surrendered to the ICTY some 10 years ago, on the eve of the assassination of the first democratically elected prime minister of Serbia, Zoran Djindjic, by a cabal of secret police, mafia and war criminal types, of which Seselj probably had some advance knowledge. From the very get go he set out to ‘destroy’ the Tribunal, inter alia by representing himself and being disruptive to the absolute maximum. When the Trial Chamber originally assigned to his case decided to appoint counsel and deny him self-representation, Seselj went on a hunger strike. Fearing the potential fallout from Seselj dying in custody after the death of Milosevic, the Appeals Chamber made an essentially political decision to reverse the appointment of counsel and change the Trial Chamber that would hear the case, adopting an absolutist position on self-representation that is certainly not warranted by human rights considerations (note that had Seselj been tried in Serbia itself, he would have to have been represented by counsel, as is the case in many other European jurisdictions in serious cases).

The presiding judge of the newly assigned Trial Chamber went on to demonstrate little evidence of competence, with Seselj more or less doing as he pleased in the courtroom, despite several prosecutions and convictions for contempt of Tribunal. The trial closed in March 2012, and the issuance of the judgment was scheduled for 30 October 2013. In other words, it took a year and a half to draft the trial judgment in what is on any objective account a mid-range, not particularly demanding case. And now that trial judgment might never be issued because of the whole Harhoff affair – I at least see no way of salvaging the trial that would not be unfair towards Seselj. Even if Seselj had been convicted, it is likely that the sentence he would get would be absorbed by the 10 years he spent in detention on remand. In any event Seselj will soon be returning to Belgrade in triumph. He may not have ‘destroyed’ the Tribunal, but he was certainly happy to watch it destroy itself.

It now seems fairly clear that the US and the UK are set to take military action in Syria in the coming days in response to the recent chemical attacks there. The UK Prime Minister, UK Foreign Secretary and the UK Secretary of State for Defence have all asserted that any action taken in Syria will be lawful. But on what grounds will military action in Syria be lawful. As is well known, United Nations Charter prohibits the use of force in Art. 2(4), as does customary international law. The UN Charter provides 2 clear exceptions to the prohibition of the use of force: self defence and authorization by the UN Security Council. It is almost certain that there will be no Security Council authorization. In a previous post, I considered the possibility of a (collective) self defence justification for the use of force in response to a use of chemical weapons. The scenario contemplated then is very different from the situation that has emerged, and the language used, at least by the UK, does not hint at a use of force on the basis of national interest. However, President Obama in a CNN interview last week did seem to speak of self defence when he said “there is no doubt that when you start seeing chemical weapons used on a large scale … that starts getting to some core national interests that the United States has, both in terms of us making sure that weapons of mass destruction are not proliferating, as well as needing to protect our allies, our bases in the region.” A justification for force on this basis would sound like preemptive self defence in a way that is very close to the Bush doctrine. I find it hard to see the Obama administration articulating a legal doctrine of preemptive self defence claim in this scenario.

So, absent Security Council authorization and a self defence claim, would the use of force be lawful? This is a question receiving a lot of media attention in the UK and I spent much of yesterday fielding this question in various media interviews (here on Channel 4, on BBC Radio 5 live [around the 1hr 10 min mark] and here on the Syria Deeply website.) In an earlier post I considered the legality of arming rebels in Syria and concluded that there was no strong legal basis for doing so. Well, the same is true of direct military action. It is hard to make the case that international law allows the use of force in this scenario or that the use of chemical weapons makes the case for lawful military action easier. Read the rest of this entry…

Today marks the 100th anniversary of the Peace Palace, which houses the International Court of Justice in the Hague. The Peace Palace also houses the Permanent Court of Arbitration (PCA), the Hague Academy of International Law and the Peace Palace Library. The idea for the building emerged after the First Hague Peace Conference of 1899. Originally intended to house the PCA and the library, the construction of the palace was financed by Andrew Carnegie.

Today is also the anniversary of the death of Hugo Grotius, the so-called “father of international law”. He was born in 1583 and died on August 28 1645. As it happens, the Peace Palace holds one of the greatest collections of the works of Grotius (see details here), including original copies of Grotius’s famous Mare Liberum and one of only two known original copies of De iure belli ac pacis (The only other known copy is in the Bodleian Library in Oxford)

Today is also the 50th anniversary of Martin Luther King Jr’s “I have a Dream” speech.

Sadie Blanchard is a Research Fellow at the Max Planck Institute for International, European and Regulatory Procedural Law.

The Hague Academy of International Law(logo, below right, credit) has offered annual courses in public and private international law for eighty-five years as part of its founding objective of promoting “peace through law.” This year’s courses on public international law ended in July and the private international law courses ended this month. Each year the public international law course attracts students from up to eighty countries worldwide, with this year’s hosting a record number of nearly 350 students. The 2013 General Course on Public International Law was delivered by Professor James Crawford (Cambridge) and was titled “The Course of International Law. Practice and Process of the Law of Nations”. Other courses in 2013 included a course by Professor Eyal Benvenisti (Tel Aviv), “The International Law of Global Governance”; a course by Professor Robert Kolb (Geneva) on “Article 103 of the United Nations Charter;” and a course by Professor Anna Wyrozumska (Lodz) on “The Role of Domestic Judges in the Development of International Law“.

The form and content of Academy courses over the years reflect the evolution of international law and the unfolding of global affairs, and at times Academy courses have even been harbingers of things to come. This post highlights a few examples.

After over forty years of holding courses only in French—then the language of diplomacy—when the Academy reconvened in 1947 after a hiatus during World War II, it offered its first courses in English, reflecting the rise of U.S. global power after the war. That same year, as the UN General Assembly drafted and considered the Universal Declaration of Human Rights, Hersch Lauterpacht taught The International Protection of Human Rights. The Universal Declaration was adopted the following year.

Interestingly, while among States human rights did not gather steam as an international legal doctrine until after World War II, the courses of The Hague Academy remind us that international law scholars were laying its foundation well before then. Read the rest of this entry…

My answer to Kevin’s question is yes! Ordinary meaning of a treaty text should trump the supposed intention of the parties to the treaty. This is what the VCLT says but I answer that question in affirmative because I also think the VCLT was right to say so. I agree with Dov’s point but only to a point. I do not think the VCLT rules on treaty interpretation should apply in their entirety to the ICC Statute but that does not mean they do not apply at all. I discussed these points as comments to my earlier post but thought it would be useful to make my responses a separate post.

The Usefulness/Uselessness of Drafting History and Intention of the Parties

The reason to prefer ordinary meaning to the supposed intention of the parties, particularly in a multilateral treaty, is because the intention of the parties can be and is often difficult to glean apart from the actual words used. In other words, one should only very rarely conclude that ordinary meaning and clear words do not reflect the intention of the parties One might say, “but we can glean the intention from drafting history and if that differs from the words we should use that”. The problem is that the drafting history is often fragmentary and incomplete, in the case of multilateral treaties. Some (usually very few) states will say something on the record about a particular text and the majority will not. Then the temptation is to draw inferences from the way in which the negotiations proceeded (what was changed, what was left out, when the changes were made, in what order etc). But all of that will usually be assumptions about what all the parties intended. They may be logical assumptions but are still assumptions.

Different States may have different reasons for making particular changes, inserting particular words etc. Indeed members of the delegations of the same State may have different thoughts with regard to particular texts. Apart from the point made above, a number of personal experiences regarding the usefulness of drafting history also lead me to the conclusion that it is often unreliable. In writing a piece some years ago about the ICC, I sent the piece to two people who were members of a particular State’s delegation at Rome in 1998. This is a State that was intimately involved in the negotiations and that takes these things seriously. The two members of the same State’s delegations gave me different responses about what was intended with respect to particular provisions of the Rome Statute! Read the rest of this entry…

Recent reports regarding the possible use of chemical weapons in Syria are very disturbing indeed. If it turns out that there is concrete evidence that chemical weapons have been used, many will hope this will (finally) provoke action by the Security Council. There will inevitably be calls for accountability of those responsible and hopes that the Syrian situation will be referred to the International Criminal Court (ICC). But even if the Syrian situation is referred to the ICC, can the Court prosecute for use of chemical weapons in Syria.

As Syria is not a party to the Statute of the International Criminal Court, the ICC will only have jurisdiction over events in Syria if there is a Security Council referral (Arts 12 & 13, ICC Statute). If the Council were to refer the situation in Syria, it is possible that attacks involving the use of chemical weapons may be prosecuted as part of a charge of crimes against humanity or as part of the war crime of intentionally directing attacks against a civilian population. In such a case, the use of chemical weapons would not form part of the core of the charge but would simply be the means by which the attack has taken place. Proving use of chemical weapons would not be necessary to sustain either charge. However, it is interesting to consider whether the use of chemical weapons would itself be a crime under the ICC Statute in the Syrian situation. I think the answer is yes, but, perhaps surprisingly, the answer is not as straightforward as one might have thought or would have hoped.

Does the ICC Statute Specifically Prohibit the Use of Chemical Weapons?

Despite attempts to include a provision that would have specifically and expressly criminalised the use of chemical weapons, the ICC Statute adopted in Rome 1998 did not mention chemical weapons by name (see Bill Schabas’ post here). However, Article 8(2)(b) of the Statute dealing with war crimes includes 3 provisions that might be interpreted as applying to chemical weapons. Art. 8(2)(b)xvii makes it a war crime to employ “poison or poisoned weapons”. Para. xvii refers to “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. Para. xx makes it a war crime to employ “weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. . . .” However, that last provision only prohibits those weapons if they are subject to a comprehensive prohibition and included in an annex to the Statute. Unfortunately, no annex to this provision has been agreed so no one can (yet) be prosecuted under para xx.

An argument has been made that the provisions of the ICC Statute listed above do not cover chemical and biological weapons Read the rest of this entry…